IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Dwayne Harris,

Plaintiff

 v.

Harry E. Hageman, et al.,

Defendants

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:

:

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:

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Civil Action 2:11-cv-728

Judge Smith

Magistrate Judge Abel

OPINION AND ORDER

Plaintiff is an inmate currently incarcerated in the Ohio penal system. He

filed this action on August 10, 2011, alleging that the Ohio Adult Parole Authority

(“OAPA”), which has repeatedly denied him parole, exercises authority which is

unconstitutional under the Fourteenth Amendment in that the Ohio statute giving

it violates what he refers to as the “unbridled discretion doctrine” and the

“nondelegation doctrine”. These, he states, bar the assignment to a state agency of

total discretion in decision-making (here, parole decisions) unreviewable by any

court.

On August 29, 2011, the Magistrate Judge issued an initial screening Report

and Recommendation pursuant to 28 U.S.C. §1915A(a) and (b) and 42 U.S.C.

§1997e(c). He found that a plaintiff seeking to bring a claim under 42 U.S.C. §1983

for violation of his right to procedural due process must show that the state

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deprived him of a constitutionally protected interest in life, liberty, or property

without due process of law, and that the United States Supreme Court has held

that there is no constitutional right of a convicted person to be paroled before the

expiration of a valid sentence. (Doc. 5 at 3, citing Greenholtz v. Inmates of Neb.

Penal and Corr. Complex, 442 U.S. 1, 7 (1979).) The Magistrate Judge stated:

Plaintiff concedes in his complaint that he does not have a

constitutional right to parole. He states instead that the Ohio Adult

Parole Authority's possession of complete discretion in making

unappealable parole decisions, "regardless of how arbitrary and

capricious" they may be, is violative of his constitutional right to due

process. However, as noted above, Plaintiff has a constitutional right

not to be deprived of his liberty without due process of law, not to "due

process of law" itself. Where a prisoner does not have a constitutional

right to be released prior to the expiration of his sentence, refusing

him parole, for any reason or no reason at all, does not deprive him of

a constitutionally-recognized liberty interest. Furthermore, even if a

liberty interest in parole existed, all that due process of law requires is

an opportunity to be heard and a statement of the reasons denying

parole. Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011). Plaintiff does

not deny that he received these. Defendants therefore have not

infringed Plaintiff's right to due process.

(Id. at 3-4.)

This matter is now before the Court for de novo review pursuant to 28 U.S.C.

§636(b)(1)(B). On objection, Plaintiff identifies the “unbridled discretion doctrine”

and “nondelegation doctrine” at greater length. As to the former, Plaintiff states

that “[i]t is mandatory for the legislature to set clear unambiguous standards, so

that the judiciary can monitor whether the administrative agency is complying with

legislature intent.” (Doc. 7 at 5.) Citing City of Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750 (1988), he seems to argue that the Ohio statutes delegating complete

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discretion to the OAPA in making parole decisions are unconstitutional because no

state legislature can enact a law granting an agency discretion without any

guidance or other indication as to what objectives the agency is to pursue.

The United States Supreme Court, in City of Lakewood, struck down a city

ordinance which granted the mayor authority to grant or deny applications for

annual permits for publishers to place newsracks on public property. A publisher

challenged the ordinance as unconstitutional because it infringed upon the First

Amendment in giving a public official unbridled discretion to approve or reject

expressive activity.1

 The Court noted that such authority was especially dangerous

to freedom of speech. “At the root of this long line of precedent is the time-tested

knowledge that in the area of free expression a licensing statute placing unbridled

discretion in the hands of a government official or agency constitutes a prior

restraint and may result in censorship.” Id. at 757.

However, Lakewood and similar cases involve an underlying constitutional

right – freedom of speech – which public authorities could not regulate with

unbridled discretion. Here the statutes which gave complete discretion to the

OAPA to make parole decisions endanger no such right because, as Plaintiff

concedes, there is no constitutional right of a convicted person to be paroled before

the expiration of a valid sentence, and the State of Ohio has not created a

1

 The other case Plaintiff cites, Mga Susu, Inc. v. County of Benton, 853

F.Supp. 1147 (D. Minn. 1994), is likewise a First Amendment challenge to the

granting of unfettered discretion to deny licenses or permits on the basis of content

of speech. 

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constitutionally cognizable liberty interest in parole eligibility. Michael v. Ghee,

498 F.3d 372, 378 (6th Cir. 2007). Consequently, Plaintiff has been deprived of

nothing through such a grant of discretion.

Plaintiff further argues that the nondelegation doctrine bars the Ohio

General Assembly from giving the OAPA authority “to set arbitrary prerequisites

for release, because the legislature passed on its legislative responsibilities to that

administrative body”, rendering judicial review to determine whether a parole

decision was in accordance with legislative intent impossible. He cites to Auerbach

v. Kinley, 594 F.Supp. 1503 (N.D.N.Y. 1984), rev’d in part, 796 F.2d 350, McCollum

v. City of Powder Springs, Ga., 720 F.Supp. 985 (N.D. Ga. 1989), Schultz v. Milne,

849 F.Supp. 708 (N.D. Cal. 1994), and United States v. Garfinkel, 29 F.3d 451 (8th

Cir. 1994). Auerbach involved the constitutionality of the authority vested in

elections boards by New York law to determine voter residence. In McCollum, a

federal court struck down a city ordinance which denied the city council discretion

to approve liquor licenses near residential areas when at least one neighbor

appeared at a hearing to complain, on grounds that it violated the prospective

licensee’s right to due process of law by, in effect, delegating the decision to private

citizens. In Schultz, a federal court found that a city had impermissibly delegated

its process for establishing and enforcing zoning standards to a private citizens’

group. Finally, Garfinkel involved a claim that Congress had impermissibly

delegated its legislative power to the Food and Drug Administration.

Again, however, this line of caselaw is irrelevant. In, e.g., McCollum and

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Schultz, the plaintiff was denied a property interest (a liquor license, the ability to

renovate a house) without due process of law due to the impermissible delegation of

decision-making authority to private citizens. The Ohio General Assembly’s

investiture of complete discretion in the OAPA does not risk depriving Plaintiff of a

constitutionally cognizable liberty interest in parole, because he has none.2 His

challenge on this basis is accordingly groundless.

Finally, the Ohio statutory scheme, vesting complete discretion in the parole

board, has long been upheld as constitutional. Jago v. Van Curen, 454 U.S. 14, 20-

21 (1981). Even if this court were to conclude that the Constitution places some

limits on what process is due a convicted Ohio defendant seeking release on parole,

all that would be due is an opportunity to be heard and a statement of the reasons

for denying release on parole. Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011). 

Defendants have provided Plaintiff with both an opportunity to be heard and a

statement of reasons.

Plaintiff’s challenges to the authority of the Ohio Adult Parole Authority

under the “unbridled discretion doctrine” and “nondelegation doctrine” are thus not

well taken. The Court ADOPTS the Report and Recommendation of the Magistrate

Judge. It DISMISSES this action pursuant to 28 U.S.C. §1915A(b)(1) for failure to

2

 Furthermore, the existence of the Ohio General Assembly, and the extent to

which it has the power to delegate authority to any person or agency, are

established by the Ohio Constitution, not the United States Constitution. Claims

cannot be brought under 42 U.S.C. §1983 for violation of state law. Michael, 498

F.3d at 375-76.

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state a claim upon which relief can be granted.

s/ George C. Smith 

United States District Judge 

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